Appeal by defendant-appellant from judgments entered 8 June
2006 by Judge Zoro J. Guice Jr. in Haywood County Superior Court.
Heard in the Court of Appeals 4 June 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Hilda Burnett-Baker, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Emily H. Davis, for defendant-appellant.
MARTIN, Chief Judge
Defendant was charged in two true bills of indictment with
felonious breaking or entering, two counts of felonious larceny,
and two counts of possession of stolen property. He was also
charged with having attained the status of an habitual felon. A
jury found him guilty of all of the charges. The trial court
arrested judgment as to the two convictions of possession of stolen
property and sentenced him to three consecutive terms of
imprisonment of 168 months to 211 months for felony breaking or
entering (06 CRS 1007), 168 to 211 months for one count of felony
larceny (06 CRS 1007), and 168 to 211 months for the other count of
felony larceny (06 CRS 1008). Defendant appeals.
The evidence before the trial court tended to show that atapproximately 1:00 a.m on the morning of 15 July 2005, Officers
Craig Shiba and Brad Miller of the Waynesville Police Department
and Deputy Norman of the Haywood County Sheriff's Department
responded to a call reporting that there appeared to be two people
inside the Abundant Life Assembly of God. Officers Shiba and
Miller approached the building, and saw defendant walking away from
the church carrying various items. He was arrested, and various
items including shampoo, Clorox cleanup, canned goods, and
miscellaneous kitchen supplies were recovered from a nearby trash
After arresting defendant, Officers Shiba and Miller searched
the area for the reported second suspect, while Deputy Norman
remained with defendant in the church parking lot. Sergeant Keith
Moore arrived in the parking lot shortly thereafter, and read
defendant his Miranda rights. No other persons were discovered in
the vicinity of the church.
Officer Shiba testified that he questioned defendant after
completing his search. He stated that defendant smelled like
alcohol and his speech was slurred. Shiba testified that it was
his opinion that defendant had consumed a sufficient amount of an
impairing substance to appreciably impair his mental and/or
physical faculties. After questioning defendant, Officer Shiba
located the church pastor, Paul Hensley, who identified the items
in the trash bag as having come from inside the church. He
estimated the combined value of the items as between three and four
hundred dollars. Mr. Hensley also noted that his two guitars, eachvalued at approximately six hundred dollars, were missing. The
guitars were not recovered at that time.
After the other officers left the area with defendant,
Sergeant Moore canvassed the neighborhood. He located a man and
woman across the street from the church, and recognized the man as
Junior Forney, an individual Sergeant Moore had arrested on prior
occasions for breaking and entering, and who had just been released
from prison. Mr. Forney admitted to calling the police about the
intruders in the church. At trial, Sergeant Moore conceded that
there was no account of Mr. Forney or his statements to the police
in the case's court file.
Two days after defendant's arrest, Sam Smith, a volunteer at
Hazelwood Presbyterian Church who drove defendant to his home, went
to defendant's trailer to close its windows. At defendant's
landlord's request, Mr. Smith also searched the premises for the
two missing guitars. He found two guitars corresponding to the
description given by the pastor, and reported his discovery to
Officer Miller. Based on his statement, Officers Miller and Moore
obtained a search warrant, and recovered the guitars from the
trailer. The warrant was introduced into evidence at the trial
over defendant's objection.
Defendant first argues that the trial court erred by entering
judgment against him for larceny as alleged in Count II of the
indictment in 06 CRS 1007. Defendant alleges that the indictment
was fatally defective in that it failed to allege as victim of thelarceny a natural person or legal entity capable of owning
property, thereby depriving the trial court of jurisdiction over
the offense. We agree.
To be sufficient, an indictment for larceny must allege the
owner or person in lawful possession of the stolen property.
State v. Downing
, 313 N.C. 164, 166, 326 S.E.2d 256, 258 (1985).
If the entity named in the indictment is not a person, it must be
alleged that the victim was a legal entity capable of owning
property[.] State v. Woody
, 132 N.C. App. 788, 790, 513 S.E.2d
801, 803 (1999). An indictment that insufficiently alleges the
identity of the victim is fatally defective and cannot support
conviction of either a misdemeanor or a felony. Id
In this case, the indictment identified Abundant Life
Assembly of God of Waynesville as the victim of the larceny,
without alleging that such victim was a natural person or a legal
entity capable of owning property. Against an identical factual
background, this Court has held that the failure to include the
required allegation of ownership deprives the trial court of
jurisdiction, and necessitates the reversal of the conviction. See
State v. Cathey,
162 N.C. App. 350, 352-53, 590 S.E.2d 408, 410
(2004)(reversing a conviction for larceny since the indictment did
not specify that the victim, the Faith Temple Church of God was
a legal entity capable of owning property). The State concedes
is controlling, but argues, for preservation purposes,
that we should subject such defects in the indictments to harmless
error review. However, it is axiomatic that one panel of the Courtof Appeals may not overrule another panel. In re Appeal from Civil
, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989). Therefore,
we are bound by Cathey
, and the conviction in Count II of 06 CRS
1007 must be vacated.
Next, defendant argues the trial court erred in denying his
motion to dismiss and entering judgment against him for two counts
of larceny, the items in the white garbage bag (06 CRS 1007) and
the two guitars (06 CRS 1008) when the evidence showed that the two
charges arose from the same transaction. We address this together
with defendant's fourth argument that the trial court committed
plain error in giving a single pattern larceny instruction when it
submitted two counts of larceny to the jury. Since we have already
vacated defendant's conviction of larceny in Count II of 06 CRS
1007, defendant's arguments in this regard are moot and we do not
Finally, defendant argues that the trial court erred in
denying his motions to dismiss and subsequently entering judgment
against him for breaking and entering because the State failed to
produce any evidence that he entered the church without consent.
When a defendant moves for dismissal, the trial court is to
determine whether there is substantial evidence (a) of each
essential element of the offense charged, or of a lesser offense
included therein, and (b) of defendant's being the perpetrator of
the offense. If so, the motion to dismiss is properly denied.
State v. Bellamy
, 172 N.C. App. 649, 656, 617 S.E.2d 81, 87 (2005)
(quoting State v. Earnhardt
, 307 N.C. 62, 65-66, 296 S.E.2d 649,651-52 (1982)). Substantial evidence is relevant evidences that
a reasonable mind might accept as adequate to support a
conclusion. State v. Vick
, 341 N.C. 569, 583-84, 461 S.E.2d 655,
663 (1995). In ruling on a motion to dismiss, the court must view
the evidence in a light most favorable to the State. State v.
, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
The essential elements of felonious breaking or entering are
(1) the breaking or entering (2) of any building (3) with the
intent to commit any felony or larceny therein. State v. Thomas
153 N.C. App. 326, 334, 570 S.E.2d 142, 146 (2002) (citation
omitted). An intent to commit larceny at the time of the breaking
or entering may be inferred from the defendant's conduct and other
circumstances shown by the evidence. State v. Costigan
, 51 N.C.
App. 442, 276 S.E.2d 467 (1981). Defendant argues that our Supreme
Court's decision in State v. Boone
, 297 N.C. 652, 659, 256 S.E.2d
683, 687 (1979) also requires that the State prove that defendant
entered without permission.
Our Supreme Court has ruled that evidence that defendant
entered a building without permission of its occupants is
sufficient to prove lack to consent. State v. Sweezy,
366, 383-84, 230 S.E.2d 524, 535 (1976). In this case, the
Reverend Hensley testified that (a) defendant was not a member of
the church, that (b) he had items removed from the church in his
possession, and (c) a screen had been cut open to permit access to
the church, apparently on the morning of 15 July 2005. Taken
together, these facts constitute evidence of lack of consent. TheState may rely on circumstantial evidence to prove its prima facie
case, as [t]he law makes no distinction between the weight to be
given to either direct or circumstantial evidence. State v.
, 137 N.C. App. 553, 557, 528 S.E.2d 386, 390, disc. review
, 352 N.C. 361, 544 S.E.2d 556 (2000) (quoting State v.
, 107 N.C. App. 200, 204, 419 S.E.2d 200, 203 (1992)).
Therefore, this argument is dismissed.
We find no error in defendant's convictions of breaking and
entering as alleged in Count I of 06 CRS 1007, larceny as alleged
in Count I of 06 CRS 1008, or having attained habitual felon status
with respect to those convictions. We vacate his conviction for
larceny with respect to the judgment entered as to Count II of 06
No error in part, vacated in part.
Judges TYSON and McCULLOUGH concur.
Report per 30(e).
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